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TMI Blog2015 (4) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise Act, 1944. As such, the revision application filed beyond jurisdiction is not maintainable before central Government under section 35EE. Applicant can avail the available appellate remedy under section 35B before Hon'ble CESTAT in accordance with the provision of law. - Decided against assessee. - F. No. 195/1272/12-RA-CX - 5/14-CX - Dated:- 2-1-2014 - D.P. Singh, Joint Secretary ORDER This revision application is filed by M/s Emtex Industries (India) Ltd., Maharashtra against the Order-in-Appeal No SB/261/Th-I/10 dated 07.12.2010 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-I, with respect to order-in-original passed by the Assistant Commissioner of Central Excise, Kalyan-IV Division. 2. Brief facts of the case are that the applicants are engaged in processing of 100% cotton man-made fabrics falling under Chapter 52, 54 55 of Central Excise Tariff Act, 1995. As such, clearing the products for home consumption up to 8th July, 2004 paying appropriate duty of Central Excise after availing cenvat credit on inputs, under cenvat credit Rules, 2002 2004. With effect from 9 th July, 2004 applicants opted for exemption u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner Kalyan-IV as such, there, was no valid reasons to reject the instant rebate claim. Whereas Assistant Commissioner, ignoring the settled law on the issue, rejected the instant claim upon different ground than what were specified on the Show Cause Notice, as if by any means he is to reject the rebate claim. So such an order passed by Assistant Commissioner is not sustainable liable to be set aside quashed. 4.2 The applicants had already put forth the order of Hon'ble Karnataka High Court, CESTAT Bangalore before Commissioner (Appeals). The order of Hon'ble High Court is upheld by Hon'ble Supreme Court of India. Relevant portions of it are as follows:- The High Court in its impugned order upheld the. Tribunal s order.[ 2006(205) ELT 956 (Tri- Bang.)] holding that there is no expressed prohibition in terms of Rule 5 of Canvat credit rules, 2002 therefore refund claim for unutilized cenvat/Modvat credit is eligible and refund is to be made in cash when assessee goes out of Modvat scheme or when the factory is closed. Apart from these case laws, Various other judicial forums like Hon'ble CESTAT Delhi. Hon ble CESTAT Mumbai has constantly held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and perused the impugned Order-in-Original and Order-in-Appeal. 7. On perusal of records, Government observes that the applicant had opted for exemption under Notification No. 30/2004-CE dated 09.07.04 and stopped paying duty on their final products. Upto 08.07.2004, they were clearing their finished goods on payment of duty after availing cenvat credit on inputs. The applicant filed refund claim for the unutilized cenvat credit, which was rejected by the original authority. Commissioner (Appeals) upheld impugned Order-in-Original. Now the applicant has filed this Revision Application on ground mentioned in para (4) above after expiry a more than 9 months from date of receipt of impugned Order-in-Appeal. 8. Government finds that the applicant filed this Revision Application after expiry of more than 9 months from date of receipt of impugned Order-in-Appeal. The time limit for filing revision application is stipulated under section 35EE(2) of Central Excise Act, 1944 and the provisions of section 35 EE of Central Excise Act 1944 for read preference are extracted as under :- Revision by Central Government. (1) The Central Government may, on the application of any pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no evidence has been produced in support of their claim of receiving said order on 1.1.12. So this contention is not acceptable. As such this revision application is time barred. 8.2 Hon'ble Supreme Court in the case of collector Land Acquisition Anantnag and Others Vs. Mst. Katji and others reported in 1987 (28) ELT (SC) has held that when delay is within condonable limit laid down by the statute, the discretion vested in the authority to condone such delay is to be exercised following guidelines laid down in the said judgment. But when there is no such condonable limit and the claim is filed beyond time period prescribed by statute, then there is no discretion to any authority to extend the time limit. 8.3 Hon'ble Supreme Court has also held in the case of UOI vs. Kirloskar Pneumatics Company reported in 1996 (84) ELT 401 (SC) that High Court under Writ Jurisdiction cannot direct the custom authorities ignore time limit prescribed under section 27 of Customs Act, 1962 even though High Court itself may not be bound by the time limit of the said section. In particular, the customs authorities, who are the creatures of the Customs Act, cannot be directed to ignore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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